United States Court of Appeals For the First Circuit
No. 17-9002
IN RE: KIMMY R. JACKSON, a/k/a Kimmy R. Jackson-Lupoli, a/k/a Kimmy Lupoli,
Debtor.
KIMMY RENE JACKSON,
Appellant,
v.
ING BANK, FSB; CAPITAL ONE, N.A.; BANK OF AMERICA, N.A.; HARMON LAW OFFICES, P.C.; PORTNOY & GREENE, P.C.,
Appellees.
APPEAL FROM THE UNITED STATES BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT
Before
Howard, Chief Judge, and Thompson, Circuit Judge.*
David G. Baker for appellant. David Himelfarb for appellees ING Bank, FSB and Capital One, N.A.; Connie Flores Jones for appellee Bank of America, N.A.; Kurt R. McHugh, with whom Robert M. Mendillo was on brief, for appellee
* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). Harmon Law Offices, P.C.
February 22, 2021 HOWARD, Chief Judge. This appeal arises from two
attempts to foreclose the mortgage on a condominium that appellant
Kimmy R. Jackson purchased over a decade ago. Jackson sought
relief in the bankruptcy court, asserting a range of claims against
the financial institutions and law firms connected with the
foreclosures. The bankruptcy court found a subset of Jackson's
claims meritorious, declaring the first foreclosure void and
awarding her some damages, but it scrapped the remainder of her
claims. Because Jackson's challenges to the bankruptcy court's
decisions are largely waived and otherwise baseless, we affirm.
I.
A.
In 2004, Jackson borrowed $220,000 from Countrywide Home
Loans, Inc. ("Countrywide") to purchase a condominium at 700
Wellman Avenue, Unit 316, North Chelmsford, Massachusetts (the
"property"). She executed a promissory note to Countrywide
memorializing the thirty-year interest-only loan, whose terms
included a fixed 5% interest rate for the first five years then
(as of March 1, 2009) a yearly adjustable rate pegged at the LIBOR
plus 2.250%, rounded to the nearest 0.125%. As security, Jackson
granted a mortgage on the property to Mortgage Electronic
Registration Systems, Inc. ("MERS") as nominee for Countrywide and
its successors and assigns. In January 2009, MERS assigned its
interest in the mortgage to Countrywide for the benefit of ING
- 3 - Bank, FSB ("ING"). Then in February 2012, Countrywide assigned
that interest to ING. In November 2012, ING merged into Capital
One, National Association ("Capital One").
Jackson defaulted on her loan in 2008. In April 2008,
Countrywide sent her a notice of its intention to foreclose and of
her right to cure the default by July 2008. Then in December 2008,
Countrywide obtained a judgment of foreclosure and sale of the
property, published a notice of sale through its counsel Harmon
Law Offices, P.C. ("Harmon"), acquired the property, and granted
it to Countrywide Home Loans Servicing, LP ("CHL") for the benefit
of ING. In a "Move Out Agreement" dated January 2009, Jackson
agreed to accept $3,500 from CHL in exchange for vacating the
property by February 2009 and releasing CHL and its successors
from a broad range of claims. Bank of America, N.A. ("Bank of
America") later became successor by merger to CHL.
Jackson filed a voluntary petition for relief under
chapter 7 of the Bankruptcy Code in February 2010, received a
discharge injunction in May 2010, and the case was closed in
January 2011. In October 2011, she received a letter from ING
informing her of a monthly payment due on the promissory note.
Two weeks later and then again in January 2012, Jackson received
a letter from Portnoy & Greene, P.C. ("P&G") identifying itself as
a debt collector and stating that the entire amount on the
promissory note was due to its client ING. These communications
- 4 - led Jackson to believe that the initial foreclosure was
unsuccessful, prompting her to move back into the property in June
2012. Later that month, she received a notice from ING announcing
a foreclosure sale of the property in July 2012. Days before the
scheduled sale, Jackson filed a voluntary petition for relief under
chapter 13 of the Bankruptcy Code. Although that case was
dismissed, she successfully reopened her 2010 case in December
2012 and obtained reinstatement of the automatic stay in January
2013.
B.
In February 2013, Jackson filed a six-count adversary
complaint in the bankruptcy court naming five defendants: Bank of
America (as successor to CHL); ING; Capital One (as successor to
ING); P&G; and Harmon. In Count I, she alleged wrongful
foreclosure against all defendants except P&G as to the 2008
foreclosure because neither Countrywide nor ING was the mortgagee
at the time. In Counts II, III, and IV, respectively, Jackson
alleged violations of the Massachusetts and federal Fair Debt
Collection Practices Acts ("FDCPA"), deceit and misrepresentation,
and negligence against all except P&G. In Count V, she alleged
deceit, misrepresentation, violation of the FDCPA, and violation
of the discharge injunction against P&G for falsely stating in its
January 2012 letter that ING was the mortgagee at the time.
Finally, in Count VI, Jackson alleged breach of contract and
- 5 - wrongful foreclosure against all defendants for failure to send
her notices of default before both the 2008 and 2012 foreclosures.
In May 2013, the bankruptcy court dismissed Count II in
part (the federal FDCPA claim) and Count III "for the reasons set
forth on the record of today's hearing." Pursuant to the court's
order, Jackson filed an amended complaint providing more detail on
the remaining Count II claim (the Massachusetts FDCPA claim) as
well as Counts IV and VI. Count VI was amended to apply only to
the 2012 foreclosure. In July 2013, the court, as recorded in the
text orders on the docket, dismissed Count I as to Harmon full-
stop and as to Bank of America, Capital One, and ING "except
insofar as it [sought] a declaratory judgment that the 2008
foreclosure [was] void"; Counts II and IV; and Count VI as to Bank
of America and Harmon -- all "for the reasons set forth in the
record of today's hearing." In doing so, the court resolved all
claims against Harmon. Later in January 2014, the court granted
summary judgment as to Count I in favor of Jackson, voiding the
2008 foreclosure and resolving the final claim against Bank of
America.
Alongside the adversary proceeding was a parallel
proceeding related to Capital One's $219,536.86 claim in Jackson's
reopened bankruptcy case for monies owed related to the property.
In December 2013, the bankruptcy court ruled that Jackson had
failed to provide substantial evidence to rebut the prima facie
- 6 - validity of Capital One's proof of claim, amended to $295,064.22,
except as to whether and how much it should be reduced to reflect
the time that she did not live at the property after the 2008
foreclosure. The court also consolidated that claim objection
with the ongoing adversary proceeding. In October 2014, Capital
One sought to file another amended claim in the amount of
$246,242.22, excluding the accruals from Jackson's vacancy. But
Jackson objected, and the court struck the claim.
In June 2014, the court granted summary judgment as to
Count VI in favor of Capital One and ING, resolving the final
claims against them, and denied Jackson's cross-motion for summary
judgment.
In July 2015, the bankruptcy court held a one-day bench
trial on the two remaining disputed issues: (1) whether and by
what amount Capital One's claim against Jackson's estate should be
reduced to reflect the time that she was not living at the
property; and (2) whether P&G is liable under Counts V and VI of
Jackson's amended complaint. At the close of evidence, the parties
agreed to concurrently file post-trial briefs in October 2015.
Both Capital One and P&G filed their briefs the day that they were
due, but less than an hour before midnight, Jackson requested a
two-week extension of time to file her brief because her counsel
had been hospitalized for the last two weeks. Both Capital One
and P&G opposed the extension, noting that Jackson's counsel had
- 7 - made numerous filings in other cases during that same period and
that an extension would prejudice them. The court denied Jackson's
motion. Nevertheless, nearly three weeks later, Jackson filed a
post-trial brief accompanied by a motion to file nunc pro tunc,
which the court denied in November 2015.
Jackson also moved to strike two attachments to Capital
One's brief, namely a chart of escrow payments that accrued from
the purported date of her last payment in February 2018 to the
date her case was reopened in December 2012, and a schedule of the
LIBOR history during that period as pulled from a private website.
In November 2015, the court denied the motion.
In February 2016, the bankruptcy court issued a written
ruling finding that Capital One's claim against Jackson's estate
for monies owed related to the property was $246,242.22, exclusive
of the interest, escrow payments, and late fees that accrued during
the time she spent living outside the property, and that P&G's
letters to Jackson violated the discharge injunction and the
Massachusetts FDCPA, Mass Gen. Laws Ann. ch. 93, § 49. The court
further found that P&G was not liable for deceit and
misrepresentation or for wrongful foreclosure and breach of
contract. In July 2016, after a further evidentiary hearing, the
court issued a written ruling assessing damages against P&G in the
amount of $17,994.
- 8 - C.
Jackson timely appealed to the Bankruptcy Appellate
Panel ("BAP"), contesting at least thirteen of the bankruptcy
court's orders, a "transcript," and unspecified "adverse
ruling[s]." The BAP affirmed in all respects. Jackson v. ING
Bank (In re Jackson), BAP NO. MB 16-046, 2017 WL 3822869 (B.A.P.
1st Cir. Aug. 23, 2017). This timely second-tier appeal followed.
We have jurisdiction under 28 U.S.C. § 158(d)(1).
II.
We focus on the bankruptcy court's decision, reviewing
its factual findings for clear error and its legal conclusions de
novo. See Insite Corp., Inc. v. Walsh Constr. Co. P. R. (In re
Insite Corp., Inc.), 906 F.3d 138, 145 (1st Cir. 2018) (quotation
marks and citation omitted). While we accord no special deference
to the BAP's determinations, we "nevertheless pay great attention
to the considered opinion of the three experienced bankruptcy
judges who sit on the BAP." See Mission Prod. Holdings, Inc. v.
Old Cold, LLC (In re Old Cold LLC), 879 F.3d 376, 383 & n.2 (1st
Cir. 2018). To the extent we find any error, we consider whether
it was harmless. See Fed. R. Civ. P. 61; Fed. R. Bankr. P. 9005.
We also consider whether any arguments have been
forfeited -- "the failure to make the timely assertion of a right"
-- or waived -- "the intentional relinquishment or abandonment of
a known right." United States v. Cezaire, 939 F.3d 336, 339 n.2
- 9 - (1st Cir. 2019) (alteration omitted) (internal quotation marks
omitted) (citations omitted) (quoting Barna v. Bd. of Sch. Dirs.
of Panther Valley Sch. Dist., 877 F.3d 136, 147 (3d Cir. 2017)).
Forfeited claims are reviewed only for plain error, see Redondo
Const. Corp. v. P.R. Highway & Transport. Auth. (In re Redondo
Const. Corp.), 678 F.3d 115, 121 (1st Cir. 2012), while waived
claims generally merit no consideration, see United States v.
Goodhue, 486 F.3d 52, 55 (1st Cir. 2007).
Jackson challenges the following orders of the
bankruptcy court: (1) the May and July 2013 orders dismissing all
of her claims against Harmon and most of her claims against Bank
of America, Capital One, and ING; (2) the December 2013 order
insofar as it overruled most of her objections to Capital One's
proof of claim; (3) the June 2014 order granting Capital One and
ING's motion for summary judgment and denying her cross-motion;
(4) unspecified "adverse evidentiary rulings" at the July 2015
trial; (5) the October and November 2015 orders denying her an
extension of time and leave to file nunc pro tunc her post-trial
brief; (6) the November 2015 order denying her motion to strike
two of the exhibits to Capital One's brief; (7) the February 2016
decision insofar as it valued Capital One's claim against her
estate at $246,242.22; (8) the same decision insofar as it found
that P&G was not liable for deceit and misrepresentation; (9) the
same decision insofar as it found that P&G was not liable for
- 10 - wrongful foreclosure or breach of contract; and (10) the July 2016
order insofar as it awarded only $17,994 in damages against P&G.
We address these challenges seriatim.
As to the May and July 2013 orders dismissing most of
Jackson's claims, we need not delve too deep. Jackson has waived
any challenge to those orders by failing to properly develop the
record on appeal and her argument for reversal.
The BAP declined to review this challenge because
Jackson did not provide the transcripts of the hearings at which
the claims at issue were orally dismissed, as was required under
Fed. R. Bankr. P. 8009. Although Jackson attempted to supplement
the record with the July 2013 transcript, she only did so two weeks
after oral argument. The BAP denied her request, commenting that
it "would be unfairly prejudicial to the appellee(s) and would
reward the appellant for its failure to comply with the applicable
rules." The BAP also declined to exercise its discretion under
Fed. R. Bankr. P. 8009(e) to correct that fatal omission itself.
Before Jackson ordered the July 2013 transcript, neither
transcript was available on the bankruptcy court's docket.
Jackson makes no mention in her opening brief of the
BAP's decision not to review her challenge, to deny her motion to
supplement the record with the July 2013 transcript, and to decline
to correct the record itself. Only in reply did Jackson, while
- 11 - conceding her procedural error, argue that we should overlook it.
She principally argues that the BAP erred in denying her motion to
supplement the record because any prejudice could have been
mitigated by allowing for additional briefing, that this court
reviews the bankruptcy court's decision "directly," and that "[i]n
any event," we have the "relevant transcript" now so there is no
good reason to "ignore" it, especially given the public policy in
favor of deciding cases on the merits.
We need not, as some of the appellees urge, tarry on the
"tricky" and "difficult" questions surrounding the effect of
waiver on intermediate appeal in a bankruptcy proceeding. Popular
Auto, Inc. v. Reyes-Colon (In re Reyes-Colon), 922 F.3d 13, 17-19
(1st Cir. 2019); see City Sanitation, LLC v. Allied Waste Servs.
of Mass., LLC (In re Am. Cartage, Inc.), 656 F.3d 82, 90-91 (1st
Cir. 2011). Nor need we decide whether the BAP erred in denying
Jackson's motion to supplement the record -- a decision that at
least one circuit reviews for abuse of discretion, see, e.g.,
Lifemark Hosps., Inc. v. Liljeberg Enters., Inc. (In re Liljeberg
Enters., Inc.), 304 F.3d 410, 433 & n.43 (5th Cir. 2002), but that
she waived by raising it for the first time in reply, see Kane v.
Town of Harpswell (In re Kane), 254 F.3d 325, 331 (1st Cir. 2001).
Instead, we will accept, for purposes of this case, Jackson's
invitation to treat her arguments as if they were on direct appeal.
In doing so, we comfortably rely on familiar rules of waiver.
- 12 - To start, other than including a barebones challenge to
the May and July 2013 orders in her opening brief's restatement of
the issues on appeal, Jackson offers no further discussion on any
of the claims that were dismissed apart from Count III. She
presents no argument whatsoever as to how the bankruptcy court
erred in dismissing those claims. The mere mention of a challenge
suffices only to waive it. See United States v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990) ("[I]ssues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation,
are deemed waived."); see, e.g., Clarendon Nat'l Ins. Co. v. Phila.
Indem. Ins. Co., 954 F.3d 397, 407-08 (1st Cir. 2020) (deeming
waived an argument against dismissal of a claim because appellant
only "mention[ed] in its opening brief's statement of the case
that it was seeking appellate review of the dismissal" and "did
not discuss this elsewhere in its briefs"); see generally Fed. R.
App. P. 6(b)(1), 28(a)(8).
Furthermore, the reasons for the bankruptcy court's
dismissal of Count III can only be found in the May 2013
transcript, which the bankruptcy court's docket reflects that
Jackson has not ordered and which she has not at any stage sought
to include in the record. It is well-established that "[p]arties
seeking appellate review must furnish the court with the raw
materials necessary to the due performance of the appellate task."
Campos-Orrego v. Rivera, 175 F.3d 89, 93 (1st Cir. 1999) (citing
- 13 - Moore v. Murphy, 47 F.3d 8, 10-12 (1st Cir. 1995)). Accordingly,
"it is the appellant who must bear the brunt of an insufficient
record on appeal" if an examination of the existing record "proves
inconclusive." Real v. Hogan, 828 F.2d 58, 60 (1st Cir. 1987).1
Jackson postulates that the bankruptcy court "appears to
have concluded" that Count III was subject to dismissal for want
of detrimental reliance, but this "appears" to be nothing more
than mere speculation based on how the bankruptcy court assessed
in its February 2016 decision her separate deceit and
misrepresentation claim against P&G as alleged in Count V. Because
Jackson has not pointed to, and we cannot discern, anything in the
record or the July 2013 transcript that enables us to confidently
say why the bankruptcy court dismissed the claim, we cannot
attribute error to its reasoning. Cf. Rodríguez v. Señor Frog's
de la Isla, Inc., 642 F.3d 28, 37 (1st Cir. 2011) (finding
appellant "cannot prevail" on claim that trial judge gave erroneous
jury instructions because it failed to meet the "basic requirement"
of providing a transcript of the instructions) (citing Campos-
Orrego, 175 F.3d at 94; Moore, 47 F.3d at 10-12); In re Abijoe
1 Although applications of this doctrine often hinge on Fed. R. App. P. 10, which does not apply to bankruptcy appeals per Fed. R. App. P. 6(b)(1)(A), the relevant bankruptcy rules are no different in this respect. See In re Abijoe Realty Corp., 943 F.2d 121, 123 n.1 (1st Cir. 1991); see generally Fed. R. App. P. 6(b)(2)(B); Fed. R. Bankr. P. 8009(a)(1) & (4), (b)(1); see also Fed. R. Bankr. P. 8009 advisory committee note to 2014 amendment (noting that "[t]his rule is derived from" Fed. R. App. P. 10).
- 14 - Realty Corp., 943 F.2d 121, 127-28 (1st Cir. 1991) (finding that
"[w]ithout a transcript," it was "impossible" to determine whether
the bankruptcy court denied appellants the right to present
evidence at the dismissal hearing).
As to the December 2013 order overruling most of
Jackson's objections to Capital One's proof of claim, Jackson again
waived her challenge by making little more than cursory mention of
it in her opening brief. See Zannino, 895 F.2d at 17.
C.
As to the June 2014 order granting Capital One and ING's
motion for summary judgment and denying Jackson's cross-motion on
her claims for breach of contract and wrongful foreclosure related
to the 2012 attempt to foreclose, Jackson engages in sufficient
argumentation to warrant our consideration. Our review is de novo.
See Harris v. Scarcelli (In re Oak Knoll Assocs., L.P.), 835 F.3d
24, 28-29 (1st Cir. 2016). Nevertheless, her challenge fails on
the merits.
The claims at issue (and as alleged in Count VI of the
amended complaint) maintained that Capital One and ING's failure
to provide Jackson certain notices during the 2012 commencement of
foreclosure constituted a breach of the promissory note and
mortgage contract and a wrongful foreclosure in violation of Mass.
Gen. Laws Ann. ch. 244, § 35A. The bankruptcy court concluded
- 15 - that Jackson did not raise a trialworthy issue of fact as to
whether she was entitled to any remedy because of the alleged
violations. The court noted that in U.S. Bank National Ass'n v.
Schumacher, 467 Mass. 421 (2014), the Supreme Judicial Court ruled
that the pre-foreclosure remedy for a violation of § 35A was at
best an injunction and issuance of a compliance notice and a new
cure period. It then concluded that Jackson was functionally
already receiving an injunction by virtue of the automatic stay,
that a declaratory judgment entitling her to a new notice would be
futile because the stay would prohibit issuance of the notice, and
that a new notice would not be warranted if she cured her default
pursuant to 11 U.S.C. § 1322(b)(5). The court also found that
Jackson failed to show that she would be entitled to damages on
the breach of contract claim.
Jackson now raises two claims of error, neither of which
are convincing. She stresses that the bankruptcy court "did not
have the benefit of" the Supreme Judicial Court's decision in Pinti
v. Emigrant Mortgage Co., Inc., 472 Mass. 226 (2015). But the
rule pronounced in Pinti is prospective only and was issued after
the bankruptcy court decided this issue. Id. at 243. Even if
Pinti's reach extended to this case, see Galvin v. U.S. Bank, N.A.,
852 F.3d 146, 157 n.10 (1st Cir. 2017) (citing Aurora Loan Servs.,
LLC v. Murphy, 88 Mass. App. Ct. 726, 731 (2015)), it is not clear
how it would operate to save Jackson from summary judgment. Pinti
- 16 - simply stood for the position that the failure to strictly comply
with the notice of default provisions in paragraph 22 of a
Massachusetts mortgage contract voids an attendant foreclosure.
472 Mass. at 227, 242. Because the attempted foreclosure in 2012
was just that -- an attempt -- there was nothing to void.
What is confusing is that Jackson acknowledges all of
this, so it is not clear exactly what she is arguing. She seems
to think that Pinti should inform our view of whether there was a
breach in this case, which erroneously suggests that the bankruptcy
court's decision turned on her failure to show a breach as opposed
to damages. Jackson also appears to be under the impression that
the operative foreclosure was the one in 2008 even though her
amended complaint abandoned any such claim by focusing Count VI
solely on the 2012 attempted foreclosure, as the bankruptcy court
correctly noted. See Connectu LLC v. Zuckerberg, 522 F.3d 82, 91
(1st Cir. 2008) ("An amended complaint, once filed, normally
supersedes the antecedent complaint. Thereafter, the earlier
complaint is a dead letter and no longer performs any function in
the case." (internal quotation marks and citations omitted)); see
generally Fed. R. Civ. P. 15; Fed. R. Bankr. P. 7015.
Jackson also contends that the Move Out Agreement was
based on mutual errors of law and fact and therefore cannot be a
bar to damages. This argument is irrelevant, and doubly so. For
one, it is irrelevant because the bankruptcy court's analysis did
- 17 - not hinge on the Move Out Agreement, as the BAP rightly noted.
And as Capital One has argued (in what is perhaps a bit of a
concession to Jackson), the Move Out Agreement is irrelevant to
the 2012 foreclosure action -- the only such action at issue in
Count VI.
D.
As to any "adverse evidentiary rulings" at the July 2015
trial, we have no difficulty finding that Jackson waived this
argument by failing to develop it. See Zannino, 895 F.2d at 17.2
E.
As to the October and November 2015 orders denying
Jackson an extension of time to file her post-trial brief and leave
to file it nunc pro tunc, our review is for abuse of discretion.
Cf. Graphic Commc'ns Int'l Union, Local 12-N v. Quebecor Printing
Providence, Inc., 270 F.3d 1, 3–4 (1st Cir. 2001).
We find no abuse. Jackson inexplicably waited until
less than an hour before the long-settled concurrent filing
deadline before she alerted the bankruptcy court to any issue that
she had with meeting it. As other parties had already filed their
We note that Jackson appears to have taken issue with how 2
the bankruptcy court weighed the evidence in determining Capital One's claim, arguing that "[t]he bankruptcy court erred in its evidentiary rulings at trial in finding a higher balance due." That is something quite different from what is commonly understood as an "evidentiary ruling," to wit, a decision whether to admit or exclude certain evidence.
- 18 - briefs, the court's acceptance of a belated brief by Jackson would
have granted her an unfair advantage. That her counsel may have
been hospitalized does not move the needle in view of all the
circumstances, including the fact that he made numerous filings
during the period of his reported hospitalization. Cf. Cordero-
Soto v. Island Fin., Inc., 418 F.3d 114, 117-18 (1st Cir. 2005)
(finding no abuse of discretion in denial of third motion for
extension of time when ill counsel took a deposition but did not
"make the small additional effort" of filing a motion for extension
of time).
Jackson provided no better reason to excuse her belated
filing three weeks after the deadline had passed, which would only
have compounded the prejudice to the other parties. See Pioneer
Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380,
395 (1993) (noting that bankruptcy courts must consider "the danger
of prejudice," "the length of the delay," and "the reason for the
delay" when deciding whether to permit late filings for "excusable
neglect") (citing Fed. R. Bankr. P. 9006(b)(1)).
Moreover, Jackson's post-trial brief, which contained
less than two pages of argumentation, appears to have been little
more than an attempt to relitigate an issue from the main case.
Her brief focused on the principal balance due on her loan on the
date she retook possession of the property and seemed to argue
that anything in excess of that amount was necessarily an accrual
- 19 - from the period she was vacant from the property. But as the
bankruptcy court noted, the purpose of the trial with respect to
the proof of claim was to determine whether Capital One was owed
any accruals from the vacancy period and, if not, by what amount
the claim should be reduced. The principal balance amount was
settled at the proof-of-claim stage in the main case, and any
objections to that amount should have been offered then and there.
Jackson did not offer any.
In view of the fact that the focus of this issue at trial
was solely to determine the accrual amount, the principal balance
at the time that Jackson returned to the property was irrelevant,
as it would not have affected any accruals that had accumulated
earlier. Furthermore, her benchmark for Capital One's claim
inexplicably excluded accruals that accumulated between her
repossession of the property and the reopening of her bankruptcy
case. Accordingly, the denials of Jackson's motions regarding her
post-trial briefs were not an abuse of the court's discretion.
F.
As to the November 2015 order denying Jackson's motion
to strike, we again review her preserved arguments for abuse of
discretion. See In re Fin. Oversight & Mgmt. Bd. for Puerto Rico,
899 F.3d 1, 17 (1st Cir. 2018). Again, we find none.
The bankruptcy court denied the motion on grounds that
the chart of escrow payments summarized information that was
- 20 - admitted into evidence and may well have been admissible itself
under Fed. R. Evid. 1006, and that it could take judicial notice
of the LIBOR rate history.
Jackson contends that the bankruptcy court could not
rely on the escrow payments chart simply because the information
it contained was admitted at trial or under the theory that the
chart itself may have been admissible. But as noted by the BAP,
Jackson identifies no prejudicial effect that consideration of the
escrow payments chart may have had on the bankruptcy court's
evaluation of Capital One's claim. Consequently, Jackson waived
that argument and we are left to conclude that any conceivable
error was harmless. See Clukey v. Town of Camden, 894 F.3d 25, 35
(1st Cir. 2018).
Similarly, Jackson's complaint that the LIBOR schedule
was not presented at trial gets her nowhere. Courts may take
judicial notice at any stage of the proceeding, see Fed. R. Evid.
201(d), and prevailing interest rates are a proper subject of
judicial notice, see Transorient Navigators Co., S.A. v. M/S
Southwind, 788 F.2d 288, 293 (5th Cir. 1986). Jackson does not
dispute any of this; rather she makes two narrower arguments. She
asserts that she was denied the opportunity to be heard because
the bankruptcy court did not provide advance notice of its intent
to take judicial notice. But Jackson, in her own motion to strike,
presaged that possibility and explicitly argued against it. Nor
- 21 - does the record reflect that she ever requested to be heard on
this issue before or after the court's ruling. See Norman v. Hous.
Auth. of City of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988)
("Absent a request under [Fed. R. Evid.] 201(e) for a hearing
before the district court, the fact that the court took judicial
notice of a fact or the tenor of the notice taken is not grounds
for later appeal.").
Jackson next argues that the bankruptcy court should
have stated the source of its information and why it believed the
information was accurate. In denying the motion to strike the
schedule, the court appears to have demonstrated at least a
willingness to rely on the LIBOR schedule that was provided by
Capital One. It is certainly questionable whether the court should
have relied on that information, which was drawn from a private
website that expressly disclaimed the information's accuracy. The
problem for Jackson, again, is that she makes no argument at all
as to how any potential inaccuracies in the schedule prejudiced
her. Therefore, any error was harmless. See Clukey, 894 F.3d at
35.
G.
As to the February 2016 evaluation of Capital One's claim
against Jackson's estate, we review the bankruptcy court's factual
finding for clear error. See In re Insite, 906 F.3d at 145. We
find none here.
- 22 - The bankruptcy court agreed with Jackson that the
interest, escrow, and late fees that accrued in the period during
which Jackson had vacated the property should be excluded from
Capital One's claim. One purpose of the trial was to calculate
that amount. Based on documents submitted by both parties and
accountings that Capital One presented at trial, the court
determined that the proper deduction was $48,822, which reduced
the claim to $246,242.22. Despite ample opportunity, Jackson
presented the bankruptcy court with no alternative calculation for
the reduction. She did not submit any document or offer any
testimony that laid out an alternative method of accounting, she
waived her closing argument, and she failed to timely file a post-
trial brief.
Now, before us, Jackson serves a smattering of confused
arguments. She claims that the bankruptcy court improperly shifted
the burden of proof, apparently by failing to require Capital One
to produce evidence in support of its claim. Jackson seems to
think that Capital One bore the burden at trial to prove its claim
all over again, as opposed simply to proving that it was entitled
to the accruals during the vacancy period and, if so, in what
amount. As earlier explained, Jackson is under the wrong
impression. The portion of the bankruptcy court's decision that
she quotes with skepticism was simply an acknowledgment that
Capital One chose to abandon any claim to accruals from the vacancy
- 23 - period rather than endeavoring to prove that part of its claim at
trial. This was unsurprising; Capital One had earlier attempted
to amend its claim a second time to exclude those accruals, but
that effort was thwarted by Jackson herself.
Jackson further complains that Capital One did not
present a live witness at trial to authenticate the accounting
documents that were admitted into evidence and to validate its
calculations as derived from those documents. This is perplexing.
The purpose of authentication is to assist in gatekeeping proffered
evidence, see United States v. Savarese, 686 F.3d 1, 11 (1st Cir.
2012), not in lending additional credence to evidence already
admitted, see Asociación de Periodistas de P.R. v. Mueller, 680
F.3d 70, 79 (1st Cir. 2012). Jackson also offers no support for
her contention that a court cannot deploy simple arithmetic to
accounting figures that are in evidence in order to calculate a
credit. These arguments, even if they were not waived for lack of
development, fall short of identifying any reversible error.
H.
As to the February 2016 decision to find P&G not liable
for deceit and misrepresentation, our review for preserved
arguments is de novo. See In re Insite, 906 F.3d at 145. We find
no error here, either.
The bankruptcy court concluded that Jackson's deceit and
misrepresentation claim failed because she failed to show that she
- 24 - had detrimentally relied on P&G's January 2012 letter. Jackson
argues that detrimental reliance was not an essential element of
her claim and that, in any case, she did detrimentally rely on the
letter.
The BAP found that Jackson failed to preserve her first
argument by failing to raise it before the bankruptcy court.
Jackson does not dispute that she failed to raise it below but
argues that she should not be held at fault because "both sides"
took the issue "for granted." But it was Jackson who initiated
the adversary proceeding; she carried the burden of proving all of
the elements of her claims. If she believed that the bankruptcy
court erred in requiring her to show detrimental reliance, she,
not P&G, was responsible for bringing that to the court's
attention. Cf. LNC Invs., Inc. v. First Fid. Bank, N.A. N.J., 173
F.3d 454, 461 n.5 (2d Cir. 1999) (declining to consider argument
that reliance was not an element of a claim as unpreserved).
As Jackson's claim was forfeited, we review for plain
error. In support of her first argument, Jackson cites our opinion
in Massachusetts School of Law at Andover, Inc. v. American Bar
Ass'n, 142 F.3d 26 (1st Cir. 1998) [hereinafter MSL]. There, we
noted the "general rule" that without the "necessary element" of
detrimental reliance, there is no negligent misrepresentation
claim under Massachusetts law. Id. at 41 (citing Romanoff v.
Balcom, 4 Mass. App. Ct. 768, 769 (1976)). But we also recognized
- 25 - an "exception" to this rule: that "[i]n the absence of detrimental
reliance, a party still may be held liable under Massachusetts law
for misrepresentation of information negligently supplied for the
guidance of others." Id. (citing Fox v. F & J Gattozzi Corp., 41
Mass. App. Ct. 581, 587 (1996)). Jackson, quoting this language,
says she falls within that exception.
The BAP observed that Jackson engaged in cherry-picking
quotes. Indeed, we went on to note in MSL that to fall within the
exception, a plaintiff would have to show "loss caused to [third
persons] by [the recipient's] justifiable reliance upon the
information." Id. (quoting Fox, 41 Mass. App. Ct. at 587
(alterations in original) (quoting Restatement (Second) Torts
§ 552(1) (1977))). Jackson in turn suggests that we distorted Fox
with our alterations to that quote, arguing that it "makes no
sense" for a third person to have a cause of action against the
originator of a misrepresentation but not the transmitter.
To clear up any confusion, the point that we were making
in MSL was simply that a plaintiff could sue the originator of a
negligent misrepresentation even if the plaintiff did not rely on
the misrepresentation, so long as some third person justifiably
relied on it and the plaintiff suffered harm as a result. See id.
(finding no fraudulent or negligent misrepresentation where
plaintiff did not plead that it or anyone else relied on the false
information nor that it suffered any harm from the information's
- 26 - transmittal). As the BAP noted, Jackson does not point to any
third party who justifiably relied on P&G's misrepresentation, so
she cannot take advantage of the exception articulated in MSL.
Still, to the extent there was any error, we cannot say that it
was "clear or obvious." Nat'l Fed'n of the Blind v. Container
Store, Inc., 904 F.3d 70, 86 (1st Cir. 2018) (citation omitted)
(internal quotation marks omitted).
Jackson argues in the alternative that she did in fact
detrimentally rely on P&G's letter when she incurred costs filing
a June 2012 civil action in Superior Court against ING, the
purported mortgagee named in the letter, as opposed to Countrywide,
the actual mortgagee, as well as when she reopened this bankruptcy
case and converted it to a chapter 13 case. Again, as noted by
the BAP, Jackson failed to preserve this argument.
We find no error that could be considered "clear or
obvious." Nat'l Fed'n of the Blind, 904 F.3d at 86. Jackson has
not shown that she incurred any greater expense than she otherwise
would have but for P&G's misrepresentation. Jackson's amended
complaint alleged that she filed the Superior Court action "[i]n
order to stop [P&G] from foreclosing." It is not clear why Jackson
would have forsaken her attempt to obtain an injunction had P&G
accurately stated the holder of the mortgage in its letter. It is
not even clear that Jackson would have avoided incurring costs to
serve P&G in that proceeding, as her beef with P&G went beyond the
- 27 - misrepresentation and included allegations that the letter itself
violated the discharge injunction. The same is true for Jackson's
decision to move to reopen and convert her bankruptcy case.
for wrongful foreclosure or breach of contract, our review is de
novo. See In re Insite, 906 F.3d at 145. Again, we find no error.
Jackson lodges a cursory challenge to the bankruptcy
court's no-liability finding on her wrongful foreclosure and
breach of contract claims against P&G. The court stated that it
reached that conclusion for similar reasons that it granted summary
judgment in favor of Capital One and ING on the related claims
against them. First, the court, citing Nash v. GMAC Mortg., LLC,
No. CA 10-493 S, 2011 WL 2470645, at *11 (D.R.I. 2011), report and
recommendation adopted, No. CA 10-493 S, 2011 WL 2469849 (D.R.I.
2011), found that Jackson's wrongful foreclosure claim failed
because the 2012 foreclosure was not completed -- an element of
the claim. Second, it found that Jackson's breach of contract
claim, premised on a violation of Mass. Gen. Laws Ann. ch. 244,
§ 35A, was not ripe for adjudication.
Jackson cites generally the Supreme Judicial Court's
opinion in U.S. Bank National Ass'n v. Ibanez, 458 Mass. 637
(2011), without even a pincite to direct our attention to any
relevant part of the opinion. The part of the opinion that she
- 28 - seems to rely on simply states that a foreclosure executed pursuant
to a statutory power of sale "goes forward unless the mortgagor
files an action and obtains a court order enjoining the
foreclosure." Id. at 646 (citing Beaton v. Land Ct., 367 Mass.
385, 393 (1975)). Jackson points to the fact that a mortgagor can
file a lawsuit to enjoin a foreclosure for the proposition that
"[a] threatened foreclosure is wrongful even if it is not
completed," that "[i]n doing so, a mortgagor suffers damages," and
that therefore there is no bar to awarding her damages.
Jackson's argument is flawed. It is possible that the
bankruptcy court may have conflated the reasons it gave. But the
part of Ibanez that she alludes to does not at all hold, or even
imply, that a completed foreclosure is not a prerequisite to a
wrongful foreclosure claim in Massachusetts. Nor does it adopt
the position that the costs incurred in filing a lawsuit suffice
to show damages for purposes of a breach of contract claim. If
anything, it suggests the contrary by noting that a mortgagor can
file a lawsuit to obtain an injunction enjoining the foreclosure.
We see nothing in Ibanez that should disturb the bankruptcy court's
conclusion, if not its reasoning. To the extent that Jackson's
argument is not waived for failure to develop it, it fails for the
simple fact that she has not pointed to any error.
- 29 - J.
As to the July 2016 decision to exclude certain costs
from Jackson's damages award against P&G, Jackson again waived her
challenge. The BAP declined to evaluate this challenge because
Jackson supplied an incomplete record, including neither the
transcript of the relevant evidentiary hearing nor certain
documents directly implicated in her calculation of damages. For
the reasons already discussed, Jackson's procedural missteps tie
our hands.
III.
For the foregoing reasons, we affirm the decision of the
BAP affirming the bankruptcy court in all respects.
- 30 -